Pereira v. Sessions

By
The Alagiri Immigration Law Firm
|April 25, 2018

Who is Wescley Pereira?

Learn more about the pereira v sessions Supreme Court case and what it
might mean to immigrants across the country.

Wescley Pereira came to the U.S. from Brazil on a six-month tourist visa
in 2000, and never left. He eventually made a home for himself on Martha’s
Vineyard, where he works as a handyman and lives with his wife and two
U.S. citizen children.

Pereira is the plaintiff in the U.S. Supreme Court case Pereira v. Sessions,
a case which, for thousands of immigrants, could mean the difference between
staying in the country and being deported.

The Issue at Hand

Mr. Pereira's case seems complex and uninteresting at first glance.
The plaintiff says that the time spent in the U.S. in order to qualify
for “Cancellation of Removal” immigration relief should not
stop once a generic notice to appear is received from federal immigration
authorities.

What does that mean, exactly?

Sarah Sherman-Stokes is an immigration attorney and associate director
of Boston University's Immigrants' Rights and Human Trafficking
Program, explained the background to The Washington Examiner. "There’s
something called 10-year cancellation of removal [in deportation cases]
that’s only eligible to folks who have been here for 10 years or
more without having their time stopped," Sherman-Stokes explained.

Cancellation of Removal gives immigrants who have spent ten years or more
in the country continuously the right to appeal deportation decisions
(and often avoid deportation), provided they can prove they are of good
moral character and meet a number of other stringent considerations.

There is a federal practice, however, that prevents immigrants from reaching
this ten-year count, informally known as a “time-stop.” The
US government simply sends the immigrant in question a notice saying that
he or she has an impending immigration court hearing, without citing a
date or time for said hearing. From the moment the notice is received,
the immigrant’s "continuous residence clock" is considered
stopped - i.e. he or she doesn’t accrue anymore time towards his
or her continuous residence count for Cancellation of Removal, even if
their immigration hearing ends up being years later.

Lawyers for the government contend the purpose of the stop-time rule is
to prevent an immigrant who can be deported from accruing “continuous
physical-presence time while his removal proceeding is ongoing.”

Pereira's lawyers argue that a notice with no time or date for a hearing
isn't enough to stop the clock.

The Pereira v. Sessions Supreme Court case is, in effect, questioning what
information needs to be provided for the "time-stop" to be activated
- and whether the current federal stop-clock practice is in fact legal.

Pereira's story

In May 2006, federal authorities served Pereira with a notice to appear
in immigration court, stating that he was subject to deportation proceedings
for overstaying his visa. The notice instructed him to appear “on
a date to be set at a time to be set.”

More than a year later, the government got around to scheduling Pereira's
removal hearing. Only, instead of sending the notice to his P.O. box where
Pereira receives mail, they sent the notice to his street address. It
was returned to sender.

The immigration hearing was held, although Pereira had no knowledge of
it. His deportation order was given, but Pereira remained in the country,
“having never received any hearing notice, and having no knowledge
of the in absentia removal order,” according to a brief his lawyers
filed with the court.

In March 2013, Pereira was pulled over for a traffic violation - and was
detained by federal immigration authorities. He had been in the country
for thirteen consecutive years.

Pereira applied for cancellation of removal, since according to his lawyers,
he had crossed the ten year mark for continuous presence. His immigration
judge denied the request, citing the notice to appear served to Pereira
in 2006, which "time-stopped" his continuous presence count
at only six years.

The case was appealed through the Board of Immigration Appeals and the
US Court of Appeals for the First Circuit. Although The federal appeals
court deferred to the original decision, they did state that the statute
at issue in the case is ambiguous - in fact, appellate courts across the
country have disagreed as to what information needs to be included in
a notice to appear for the government to be able to stop the continuous
presence time count.

Sherman-Stokes says these differing opinions are what make Pereira's
case the type the Supreme Court would take on.

"Both sides agree that this issue will remain entrenched," she
said. "Unless the Supreme Court addresses this, the circuit split
is likely to remain."

Opening oral arguments were heard by Justices early this week - many of
whom voiced that they found it "odd" that a notice to appear
would not include a date and time. They also worried that if the government
were required to list a date and time, they would simply put one at random
that they had no intention of honoring. Chief Justice John Roberts said
he wasn’t sure what doing that “would accomplish."

A decision in the case is expected by the end of June, and the outcome
may profoundly affect the future of deportation hearings.

If you have any questions about deportation hearings for yourself, family
members or friends, or would like to know how this case might affect your
immigration status, don't hesitate to contact us for help.

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Nothing on this site should be taken as legal advice for any individual
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